92 Decision Citation: BVA 92-11490
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-48 855 ) DATE
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THE ISSUE
Whether the injuries sustained by the veteran in December
1990 were due to his own willful misconduct for the purpose
of entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Hilary L. Goodman, Counsel
INTRODUCTION
The veteran had active service from August 1982 until his
death in December 1990. This matter came before the Board
on appeal from an administrative decision in May 1991 by the
Buffalo, New York, Regional Office. A notice of
disagreement was received in June 1991. The statement of
the case was issued in August 1991. The substantive appeal
was received in October 1991. The appeal was docketed at
the Board in November 1991. The appellant's representative,
The American Legion, submitted written argument to the Board
in January 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that, while the Department of
Veterans Affairs (VA) is assuming that, because the
veteran's blood alcohol level was high, this caused the
veteran's death, one witness reported that the veteran
successfully passed him twice at a high rate of speed,
showing that the veteran was in control of his automobile.
It is asserted that the tire marks did not start until the
veteran successfully negotiated the curve and, even though
the road and weather conditions were good, the accident
occurred along a stretch of highway which was lonely and
desolate and known for auto-animal accidents. It is further
asserted that there is no evidence to contradict the
conclusion that the veteran swerved to avoid a collision and
the vehicle was not inspected to determine if there was a
mechanical cause for the wreck. It is further contended
that the statement of the second witness should be
disregarded as she was in bed and did not witness the
accident, but only heard the tires squealing and a crash.
It is requested that the claim be remanded for the purpose
of obtaining a service department line-of-duty investigation
report.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the injuries sustained by the
veteran in a December 1990 motor vehicle accident were due
to his own willful misconduct.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the originating agency.
2. The veteran sustained fatal injuries as the result of a
December 1990 motor vehicle accident; the injuries and
resulting death were the immediate and proximate consequence
of the veteran's driving under the influence of alcohol.
CONCLUSION OF LAW
The veteran's death was the result of his own willful
misconduct and, thus, was not incurred in line of duty.
38 U.S.C. §§ 105, 1131, 5107; 38 C.F.R. §§ 3.1(n),
3.301(c)(2).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant has requested that the Board consider the
question of whether the injuries sustained by the veteran in
December 1990 were due to his own willful misconduct for the
purpose of entitlement to service connection for the cause
of his death. We note that we have found the appellant's
claim is "well grounded" within the meaning of 38 U.S.C. §
5107(a). That is, we find that she has presented a claim
which is plausible. We are also satisfied that all relevant
facts have been properly developed and no further assistance
to the appellant is required to comply with the duty to
assist mandated by 38 U.S.C. § 5107(a). It is herein noted
that, while the appellant's representative has requested
that a service department line-of-duty investigation report
be obtained, the service departments do not conduct
line-of-duty investigations where the veteran's death
immediately follows an accident.
The record, which includes medical records and documents
relating to the accident, establishes that the veteran's
death occurred on December 7, 1990, as the result of
multiple injuries sustained in a motor vehicle accident.
The appellant's entitlement to service connection for the
cause of the veteran's death is precluded where it is shown
that willful misconduct is the proximate cause of death.
For VA purposes, the simple drinking of alcoholic beverage
is not, of itself, willful misconduct. The deliberate
drinking under conditions which would raise a presumption to
that effect will be considered willful misconduct. If, in
the drinking of a beverage to enjoy its intoxicating
effects, intoxication results proximately and immediately in
disability or death, such disability or death will be
considered the result of the person's willful misconduct.
38 C.F.R. § 3.301(c)(2). Willful misconduct will not be
determinative, however, unless it is the proximate cause of
injury, disease or death. 38 C.F.R. § 3.1(n).
The appellant has contended, and the record does confirm,
that one of the individuals who provided statements did not
witness the accident, but only heard tires squealing and
then heard a crash. Although her estimate that the veteran
was traveling at approximately 120 miles per hour is
questionable, another witness related that he was driving
50 miles per hour at the time of the accident, the speed
limit, when the veteran's vehicle passed this witness at a
high rate of speed. Although it has been contended that the
fact that the veteran successfully passed this witness twice
at a high rate of speed shows that he was in control of his
automobile, the reason that the veteran passed this witness
a second time was because he overshot a turn.
It has been asserted that the veteran successfully
negotiated the curve. The Maryland State Police motor
vehicle accident report, however, reflects that the
veteran's vehicle traveled partially onto the right shoulder
previous to negotiating the curve, swerved into the opposite
lane after crossing over the center line sideways and then
traveled off of the left roadway and struck a utility pole.
The appellant does not take issue with the accident report
findings that the weather was clear and the roadway surface
dry, but suggests that the accident could have been the
result of mechanical failure or the serviceman's swerving to
avoid a collision with an animal. With respect to vehicle
condition, the official accident report shows there were no
apparent defects. There is no evidence that any animal was
involved in causing the accident. The investigating officer
reported for that the veteran's vehicle traveled onto the
right shoulder "for some unknown reason."
The record shows that an autopsy was conducted with both
urine alcohol and vitreous alcohol testing. The urine
alcohol level was .22 percent and the vitreous alcohol level
was .18 percent. Generally, research statistics have shown
that vitreous alcohol levels give reliable indications of
what blood levels will be when blood level determinations
are not feasible, blood being at least .89 times vitreous.
See, 2 Forensic Science, § 31B.07(b), at 31B-58 (1990).
Applying this formula, the veteran's blood alcohol level
would be .16, a figure in excess of the minimum required for
presumption of intoxication under the standards of the
National Safety Counsel.
Although the appellant asserts that the VA is assuming that,
because the blood alcohol level was high, this caused the
veteran's death, for sporadic drinkers, a blood alcohol
level of .16 significantly exceeds the level at which
coordination and judgment are impaired, and also exceeds the
level beginning incoordination even for chronic drinkers.
1 Cecil, Textbook of Medicine § 15, at 48-49 (18th ed.
1988). The weight of the evidence clearly leads to the
conclusion that the veteran was acting with wanton and
reckless disregard of the probable consequences. It is the
judgment of this Board that the totality of the evidence
shows that the accident in this case was proximately caused
by intoxication on the part of the veteran and his operation
of a motor vehicle in an unsafe manner. Under the
circumstances of this case, we find no other reasonable
explanation to account for the events leading to his death.
It is, therefore, regrettably concluded that the veteran's
misconduct, the excessive use of alcohol combined with
driving while so impaired, was the proximate cause of the
accident which resulted in his death and the requested
benefits are precluded. 38 U.S.C. § 105, 1131; 38 C.F.R. §§
3.1, 3.301. The evidence is not so evenly balanced that
there is doubt as to any material issue. 38 U.S.C. § 5107.
ORDER
The injuries sustained by the veteran in the fatal December
1990 motor vehicle accident were due to his own willful
misconduct for the purpose of entitlement to service
connection for the cause of the veteran's death. The appeal
is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
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decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.